Monday, January 22, 2018
Today the Supreme Court issued a 5-4 decision in Artis v. District of Columbia (covered earlier here), which addresses the tolling provision of the supplemental jurisdiction statute, 28 U.S.C. § 1367(d). Section 1367(d) often comes into play where a federal court dismisses all claims for which there is an independent basis for federal subject-matter jurisdiction, and then declines to exercise supplemental jurisdiction (pursuant to § 1367(c)) over the remaining claims. Anticipating that the parties would then pursue any such claims in state court, § 1367(d) provides that the limitations period for such a claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
Justice Ginsburg’s majority opinion (joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan) frames the question this way:
Does the word “tolled,” as used in §1367(d), mean the state limitations period is suspended during the pendency of the federal suit; or does “tolled” mean that, although the state limitations period continues to run, a plaintiff is accorded a grace period of 30 days to refile in state court post dismissal of the federal case? Petitioner urges the first, or stop-the-clock, reading. Respondent urges, and the District of Columbia Court of Appeals adopted, the second, or grace-period, reading.
The choice between these interpretations is crucial for Artis, because she refiled her state-law claims 59 days after the federal-court dismissal. Since she filed her federal-court suit with 2 years remaining on the state statute of limitations, this would be timely under the stop-the-clock approach but not under the grace-period approach.
The majority adopts the “stop-the-clock” reading: “We hold that § 1367(d)’s instruction to ‘toll’ a state limitations period means to hold it in abeyance, i.e., to stop the clock.” Part II of the opinion justifies this conclusion as a matter of the statutory text. Part III of the opinion then considers whether the statute “exceed[s] Congress’ authority under the Necessary and Proper Clause because its connection to Congress’ enumerated powers is too attenuated or because it is too great an incursion on the States’ domain” and whether the Court should adopt the grace-period reading to “avoid constitutional doubt.” The majority rejects this line of argument, relying on its unanimous decision in Jinks v. Richland County upholding the constitutionality of § 1367(d). It also notes that both stop-the-clock and grace-period provisions “are standard, off-the-shelf means of accounting for the fact that a claim was timely pressed in another forum. Requiring Congress to choose one over the other would impose a tighter constraint on Congress’ discretion than we have ever countenanced.”
Justice Gorsuch authored the dissenting opinion, joined by Justices Kennedy, Thomas, and Alito.
Wednesday, January 17, 2018
Yesterday the Supreme Court heard oral argument in two cases:
- Dalmazzi v. United States (transcript here) involves a challenge to judges serving simultaneously on military Courts of Criminal Appeals and the Court of Military Commission Review. It raises some interesting jurisdictional issues, including whether Article III permits Supreme Court jurisdiction over the Court of Appeals for the Armed Forces. Here’s Amy Howe’s analysis of the Dalmazzi argument for SCOTUSblog.
- Hall v. Hall (transcript here) involves the appealability of judgments in cases consolidated under FRCP 42. Here’s Howard Wasserman’s analysis of the Hall argument for SCOTUSblog.
Friday, January 12, 2018
Today the Supreme Court granted certiorari in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (No. 16-1220), limited to the following question:
Whether a court may exercise independent review of an appearing foreign sovereign’s interpretation of its domestic law (as held by the Fifth, Sixth, Seventh, Eleventh, and D.C. Circuits), or whether a court is “bound to defer” to a foreign government’s legal statement, as a matter of international comity, whenever the foreign government appears before the court (as held by the opinion below in accord with the Ninth Circuit).
Monday, January 8, 2018
Today the Supreme Court issued its decision in Tharpe v. Sellers. In a per curiam opinion, it grants certiorari and vacates the Eleventh Circuit’s refusal to grant a certificate of appealability (COA) to a habeas petitioner challenging the district court’s denial of his Rule 60(b)(6) motion to reopen his federal habeas proceedings. It remands the case for further consideration of whether Tharpe is entitled to a COA.
Justice Thomas authors a dissenting opinion, joined by Justices Alito and Gorsuch.
Friday, December 8, 2017
Today the U.S. Supreme Court granted certiorari in several cases, including these two:
United States v. Sanchez-Gomez presents the question: “Whether the court of appeals erred in asserting authority to review respondents’ interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents’ individual claims were moot.”
China Agritech, Inc. v. Resh presents the question: “Whether the American Pipe rule tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.”
Friday, December 1, 2017
Today the U.S. Supreme Court granted certiorari in Salt River Project Agricultural Improvement & Power District v. SolarCity Corp. It presents the question: “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.”
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Wednesday, November 8, 2017
Today the Supreme Court issued its decision in Hamer v. Neighborhood Housing Services, the first merits decision of the new Term. The Court unanimously holds that FRAP 4(a)(5)(C)’s limit on extensions of time to file a notice of appeal is not jurisdictional. (Rule 4(a)(5)(C) provides: “No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”)
Justice Ginsburg’s opinion begins:
This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment. In Bowles v. Russell, 551 U. S. 205, 210–213 (2007), this Court clarified that an appeal filing deadline prescribed by statute will be regarded as “jurisdictional,” meaning that late filing of the appeal notice necessitates dismissal of the appeal. But a time limit prescribed only in a court-made rule, Bowles acknowledged, is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee. Ibid.; Kontrick v. Ryan, 540 U. S. 443, 456 (2004). Because the Court of Appeals held jurisdictional a time limit specified in a rule, not in a statute, 835 F. 3d 761, 763 (CA7 2016), we vacate that court’s judgment dismissing the appeal.
The Court left open, however, several issues for the lower court to address on remand, including:
(1) whether respondents’ failure to raise any objection in the District Court to the overlong time extension, by itself, effected a forfeiture, see Brief for Petitioner 21–22; (2) whether respondents could gain review of the District Court’s time extension only by filing their own appeal notice, see id., at 23–27; and (3) whether equitable considerations may occasion an exception to Rule 4(a)(5)(C)’s time constraint, see id., at 29–43.
Thursday, October 26, 2017
Now up on the Vanderbilt Law Review’s website is my essay, Lost in Transplantation The Supreme Court’s Post-Prudence Jurisprudence, 70 Vand. L. Rev. En Banc 289 (2017). It’s a response to Fred Smith’s article, Undemocratic Restraint, 70 Vand. L. Rev. 845 (2017).
Wednesday, October 11, 2017
Yesterday the U.S. Supreme Court disposed of Trump v. International Refugee Assistance Project without addressing the merits. Ruling that “the appeal no longer presents a live case or controversy,” it vacated the Fourth Circuit’s judgment and remanded the case “with instructions to dismiss as moot the challenge to Executive Order No. 13,780” under United States v. Munsingwear.
Here’s the entirety of the Court’s Summary Disposition:
We granted certiorari in this case to resolve a challenge to “the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
Thursday, September 28, 2017
The deadline for filing an appeal has “jurisdictional consequences” and “should above all be clear.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988). The deadline is measured from the entry of final judgment. 28 U.S.C. § 1291; Fed. R. App. P. 4. Despite the need for clarity, for at least forty-five years the courts of appeals have disagreed as to when their jurisdiction attaches if cases are consolidated and a final judgment is entered in only one of the cases.
The split and lack of clarity have widened with the passage of time—there are four different circuit rules for determining appellate jurisdiction in consolidated cases. This Court has twice set out to resolve the four-way split. The Court granted certiorari in Erickson v. Maine Central Railroad Co., 498 U.S. 807 (1990); but subsequently dismissed the petition. 498 U.S. 1018 (1990) (mem.). The Court again granted certiorari— and partially addressed the split—in Gelboim v. Bank of Am. Corp.,135 S.Ct. 897 (2015).
Gelboim held that for cases consolidated in multidistrict litigation, a final judgment in a single case triggers the “appeal-clock” for that case. But, by limiting its holding to multidistrict litigation, Gelboim left the split unresolved for cases consolidated in a single district under Fed. R. Civ. P. 42.
The question presented is: Should the clarity Gelboim gave to multidistrict cases be extended to single district consolidated cases, so that the entry of a final judgment in only one case triggers the appeal-clock for that case?
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Tuesday, August 29, 2017
Joe Seiner has just published The Supreme Court’s New Workplace (Cambridge University Press 2017). Here’s the description:
The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court's new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.
Tuesday, June 27, 2017
On the last day of opinions for the October 2016 Term, the Court handed down decisions involving a range of civil procedure and federal courts issues:
- In California Public Employees’ Retirement System v. ANZ Securities, Inc., the Court held that the American Pipe tolling rule for class actions does not apply to the 3-year statute of repose in § 13 of the 1933 Securities Act.
- In Davila v. Davis, the Court held that, for purposes of a federal habeas petition, ineffective assistance by the prisoner’s state postconviction counsel cannot excuse a defaulted claim of ineffective assistance of appellate counsel.
- In Hernandez v. Mesa, which “involves a tragic cross-border incident in which a United States Border Patrol agent standing on United States soil shot and killed a Mexican national standing on Mexican soil,” the Court remanded the case for the Fifth Circuit to reconsider its rulings on Bivens and qualified immunity.
- In Trump. v. International Refugee Assistance Project, the Court granted certiorari to review two rulings that enjoined Trump’s executive orders on immigration. Pending review, the Court stayed those injunctions “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”
Tuesday, June 20, 2017
Yesterday the Supreme Court issued its decision in Ziglar v. Abbasi, covered earlier here and here. By a 4-2 vote, the Court reversed the Second Circuit and ordered the dismissal of most of the plaintiffs’ claims that they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. Justice Kennedy wrote the Opinion of the Court, joined (though not in its entirety) by Chief Justice Roberts and Justices Thomas and Alito. Justice Breyer wrote a dissenting opinion, joined by Justice Ginsburg. Justices Sotomayor, Kagan, and Gorsuch took no part (Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch was not on the Court at the time of oral argument). Although the cert. petitions presented three issues—Bivens, qualified immunity, and pleading standards—the bulk of the majority’s reasoning and analysis focused on Bivens.
Here are the concluding paragraphs from Justice Kennedy’s opinion:
If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners’ alleged conduct was proper, nor whether it gave decent respect to respondents’ dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.
Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above.
The question with respect to the §1985(3) claim is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative.
The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings.
For more detailed coverage, check out:
Monday, June 19, 2017
Today the Supreme Court issued its decision in Bristol-Myers Squibb Co. v. Superior Court, covered earlier here and here. By an 8-1 vote, the Court reverses the California Supreme Court’s conclusion that asserting personal jurisdiction over Bristol-Myers Squibb (BMS) was constitutional. Justice Alito writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Kagan and Gorsuch. Justice Sotomayor is the lone dissenter.
The case involves a “group of plaintiffs—consisting of 86 California residents and 592 residents from 33 other States”—who sued BMS in California state court alleging injuries arising from BMS’s drug Plavix. The issue was whether personal jurisdiction was proper over the claims by plaintiffs who were not residents of California. The California Supreme Court concluded that although BMS was not subject to general jurisdiction in California, the nonresidents’ claims were covered by specific jurisdiction.
Monday, June 12, 2017
Today the Supreme Court issued its long-awaited decision in Microsoft Corp. v. Baker, a case for which cert was granted nearly a year and a half ago. The plaintiffs in the case had sought certification of a class action, but the district court refused. After failing to receive permission to appeal the class-certification ruling under Rule 23(f), the plaintiffs (in the words of Justice Ginsburg’s majority opinion) “stipulated to a voluntary dismissal of their claims ‘with prejudice,’ but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial.”
Today’s decision finds that such a stipulated voluntary dismissal did not create appellate jurisdiction, although the Court splits 5-3 on the basis for that conclusion. Joined by Justices Kennedy, Breyer, Sotomayor and Kagan, Justice Ginsburg writes:
We hold that the voluntary dismissal essayed by respondents does not qualify as a “final decision” within the compass of §1291. The tactic would undermine §1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class-action orders.
A concurring opinion by Justice Thomas (joined by Chief Justice Roberts and Justice Alito) concludes that there was a “final decision” for purposes of § 1291, because the district court’s order “dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment.” Justice Thomas, however, reasons that “the Court of Appeals lacked jurisdiction under Article III of the Constitution,” because “[w]hen the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and disavowed any right to relief from Microsoft.”
Justice Gorsuch—who was not yet on the Court at the time of oral argument—took no part in the case.
Today the U.S. Supreme Court granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, limited to the following question:
Whether inter partes review—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents— violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Tuesday, June 6, 2017
Yesterday the Supreme Court issued a unanimous decision in Town of Chester v. Laroe Estates, Inc., covered earlier here and here. Justice Alito’s opinion for the Court decides the case on very narrow grounds—here’s how it begins:
Must a litigant possess Article III standing in order to intervene of right under Federal Rule of Civil Procedure 24(a)(2)? The parties do not dispute—and we hold—that such an intervenor must meet the requirements of Article III if the intervenor wishes to pursue relief not requested by a plaintiff. In the present case, it is unclear whether the intervenor seeks different relief, and the Court of Appeals did not resolve this threshold issue. Accordingly, we vacate the judgment and remand for that court to determine whether the intervenor seeks such additional relief.
Friday, June 2, 2017
Nease v. Ford Motor Co., distributed for next week’s Supreme Court conference, presents some interesting questions regarding the procedure surrounding Daubert motions:
1) When a district court grants or denies a motion in limine concerning expert testimony, need it state only its ultimate ruling on admissibility (as permitted in the First and Second Circuits), or must it also set forth explicit findings of fact regarding each aspect of the expert testimony rules cited in the motion (as required by most other circuits, including the Fourth Circuit below)?
2) When a federal appellate court concludes that a district court erred procedurally by admitting or excluding expert testimony in a jury trial without explicit Daubert factfinding, is the appropriate remedy for such procedural error: (a) a remand so that the omitted findings can be made by the district court (the rule applied in at least two circuits); (b) a remand for a mandatory new trial (the rule applied in the Ninth and Tenth Circuits); or (c) de novo decision of the admissibility issue on appeal (the rule applied by the Fourth Circuit below and by the Seventh Circuit)?
Here is the full cert. petition:
And here is the Fourth Circuit’s decision below.
Tuesday, May 30, 2017
Today the Supreme Court issued its decision in BNSF Railway Co. v. Tyrrell, which was argued just over a month ago (and covered earlier here and here). Justice Ginsburg writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, Alito, Kagan and Gorsuch. (In fact, this is the first merits opinion in which Justice Gorsuch participated.) Justice Sotomayor concurs in part and dissents in part.
The Court addresses two issues: one statutory and one constitutional. The first is the effect of § 56 of the Federal Employers’ Liability Act (FELA), which provides:
“Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.”
The Montana Supreme Court reasoned that these two sentences combined to authorize personal jurisdiction in any state where the defendant was “doing business.” The Supreme Court unanimously rejects this theory. Justice Ginsburg writes that § 56 “does not address personal jurisdiction.” The first sentence “is a venue prescription governing proper locations for FELA suits filed in federal court.” And the second sentence “simply clarifies that the federal courts do not have exclusive subject-matter jurisdiction over FELA suits; state courts can hear them, too.” As to this part of the majority opinion, Justice Sotomayor concurs.
Had this first issue come out the other way, the constitutional analysis might have been more friendly toward allowing personal jurisdiction—although there are some interesting wrinkles on that point that the Court, having rejected the plaintiff’s statutory argument, did not need to address. Without federal statutory authorization, the constitutionality of jurisdiction hinges on the more commonplace inquiry into whether jurisdiction over BNSF would comport with the Fourteenth Amendment’s Due Process Clause. And on this issue, the case follows in the line of the Court’s Goodyear (2011) and Daimler (2014) decisions (which Justice Ginsburg also authored), with a similar end result: due process forbids personal jurisdiction.
Monday, May 22, 2017
Today the Supreme Court issued unanimous decisions in two cases we’ve been covering:
- Water Splash, Inc. v. Menon (service by mail under the Hague Convention)
- TC Heartland LLC v. Kraft Foods Group Brands LLC (venue in patent cases)